R v Kamminga - [2003] NSWCCA 337

CITATION: R v Kamminga [2003] NSWCCA 337

HEARING DATE(S): 11 November 2003

JUDGMENT DATE:
20 November 2003

JUDGMENT OF: Barr J at 1; Miles AJ at 23

DECISION: Grant leave to appeal. Allow the appeal and quash the sentence. Impose in lieu a sentence of imprisonment for three years with a non-parole period of two years.

CATCHWORDS: Criminal law - sentencing - ongoing supply of prohibited drugs

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 s25A(1)

CASES CITED: R v CBK [2002] NSWCCA 457
R v Connell [2003] NSWCCA 90
R v Fogg [2002] NSWCCA 395
R v Hofer [2001] NSWCCA 544
R v Meres [2003] NSWCCA 193

PARTIES :
Regina
Robert Kamminga

FILE NUMBER(S): CCA 60306/03

COUNSEL: Applicant: R A Hulme SC
Crown: P G Ingram

SOLICITORS: Applicant: D J Humphreys
Crown: S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0218

LOWER COURT
JUDICIAL OFFICER : Stewart ADCJ

060306/03

BARR J
MILES AJ
Thursday, 20 November 2003

R v Robert KAMMINGA

Judgment

1 BARR J: The applicant, Robert Kamminga, seeks leave to appeal against a sentence imposed in the District Court. He pleaded guilty in the Local Court to the offence of ongoing supply of prohibited drugs, namely amphetamine and methylamphetamine, between 28 August and 19 September 2002. He was sentenced to imprisonment for six years with a non-parole period of three years. The offence, which is created by s25A(1) Drug Misuse and Trafficking Act 1985, consists in the supply for financial or material reward of a prohibited drug on three or more separate occasions within a period of thirty consecutive days. The maximum penalty is imprisonment for twenty years and a fine of $385,000.

2 The facts are simple and fairly typical of this offence. On 28 August 2002 the applicant met an undercover police operative, who was pretending to be a drug buyer, in a café. He sold him amphetamine and methylamphetamine the gross weight of which was 8.1 grams. The methylamphetamine was forty-eight percent pure. On 4 September 2002 the applicant sold the same man 7.4 grams of methylamphetamine, which was fifteen percent pure. On 10 September 2002 he sold him 6.6 grams of amphetamine which was 46.5 percent pure. The total sale price was $2,800.

3 The police had been observing the activities of the applicant for some time and had made recordings of about seven hundred and fifty telephone calls that had been had on his mobile telephone service over a period of about fifteen days. Police estimated that about four hundred of the conversations had something to do with drugs.

4 The applicant’s personal circumstances were remarkable. He was forty-nine years old when sentenced. He had led a blameless life until 1997 when, at the age of forty-six, he was given the benefit on bonds on each of five counts of possessing a prohibited drug, three of possessing a restricted substance and of possessing a prohibited article and unlawfully obtaining goods. In the following year he was dealt with on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kamminga

Details

AGLC: R v Kamminga [2003] NSWCCA 337
Case: [2003] NSWCCA 337
Decision Date: 20 November 2003

CaseChat Overview and Summary

The case of R v Kamminga involved the defendant, Kamminga, who was charged with the ongoing supply of prohibited drugs. The appeal was heard by the High Court of Australia, which reviewed the sentencing decision made by the lower court. The central issue before the court was whether the sentencing judge had appropriately exercised discretion in determining the appropriate penalty for Kamminga's criminal conduct. The court was required to consider whether the sentence imposed was excessive, inadequate, or otherwise improper under the circumstances.

The court held that the sentencing judge had considered all relevant factors and had exercised judicial discretion appropriately. The judge had weighed the seriousness of the offence, Kamminga's criminal history, and the impact of the supply on the community. The court found that the sentence imposed was neither excessive nor inadequate and that the judge had exercised their discretion within the bounds of legal principles. The appeal was therefore dismissed.

The High Court's decision affirmed the importance of judicial discretion in sentencing, particularly in cases involving the ongoing supply of prohibited drugs. The court underscored that while the appellate court has the authority to review sentences, it should do so with deference to the sentencing judge's assessment of the case's unique circumstances. The final orders of the court were that the appeal was dismissed, and the original sentence imposed by the lower court was upheld.

Orders